What’s an easement? Part I

Easements are commonly found in real estate. In general terms, an easement is an arrangement whereby a non-owner of a property has the legal right either to use that property or limit its use in some specified, special way.

The non-owner who holds the easement can be another parcel of land, public agency, utility, individual, business entity or a non-profit organization like a land trust.

A positive or affirmative easement would allow me to use a stream on my neighbor’s property for watering my livestock at a certain spot. A negative or restrictive easement held by my neighbor would prevent me from erecting a line of wind turbines that would ruin his view.

Easements are legally binding agreements, but they may or may not be recorded.

A recorded easement will be found in the courthouse records, and it’s often incorporated into the deed.

Sellers should inform buyers of any non-recorded easement. A buyer should include language in his purchase contract that requires the seller to disclose the existence of non-recorded easements and other non-recorded documents.

Country property often involves an access easement for ingress and egress. Property A is located 1,000 feet from a state-maintained road. Property A is sold to you with an access easement to cross Property B, which lies between your boundary and the road.

Property A is the “dominant tenement” because it has the right to use the land of another; Property B is the “servient tenement,” because it is burdened with this use.

Sometimes these terms will be written as dominant and servient estates.

Access easements do not convey ownership. Property A doesn’t own the land under its access road over B. Property A can’t possess the road, just use it.

Property A would typically have the legal obligation to maintain its access road over B, though the two owners may decide to share the costs.

Five problems can arise with access easements.

The first comes up when the road on the ground doesn’t follow the location of the road in the deed. Property B, the servient tenement where the road runs, may insist that A use the specified location. A may or may not have established the right to use the road where it is, which is likely to have been jiggered around over the years to avoid wet spots and steep slopes. State law and a court would have to make this call.

The second problem arises when the road is too narrow for Property A’s needs.

A ten-foot-wide easement might have been fine for wagons, horses and even pickup trucks, but it is too narrow for big trucks used for logging, concrete and building supplies. Where a deed does not specific a width, a court would likely find the agreed-to width is that which was established when the easement came into existence. If that’s not possible to estimate, the court would establish what a “reasonable width” might have been or, as a last option, what a “reasonable width” is today.

The third problem occurs when Property A uses its access easement in a way that B objects to. This often involves big trucks, lots of traffic and noise. Again, a court would have to determine the definition of “reasonable use” by A over B’s property, but, generally speaking, courts would go along with these types of uses. Property A does not have a right to use B’s property in a way that damages it.

I ran into a situation some years ago where Property A had an access easement over about a dozen other properties, none of which wanted A to run logging trucks over the road through their lands. While A had a perfect right to do so, the threat of a protracted legal squabble with a dozen well-heeled Bs was enough to discourage a buyer.

I own two wooded properties where I am the servient tenement (B) for an access road that dominant tenements (As) have a right to use. I’ve had no problem, but I know other Bs who find constant annoyance in this arrangement. I also know some As who have to squabble with their Bs, who do things like erect locked gates and excavate water bars that prohibit use. When a B (servient tenement) blocks legal access to A, he is committing trespass upon A’s easement and can be sued.

A fourth problem that can come up with access is the use of a floating easement.

This document does not specify a fixed location for the road or limit the width of the right of way. The holder of a floater may be able to claim access anywhere and however he chooses.

The final problem arises when the dominant tenement (A) increases the burden of the access easement on the servient tenement (B) by dividing his property. State laws differ on this issue. Usually, the dominant tenement will be allowed to increase the burden some, say three or four lots instead of one, but not by, say, 20.

An easement — with both a dominant and servient party that runs with the land — is called an “easement appurtenant.” It exists between adjacent parcels of land owned by different parties. The easement appurtenant is held by the dominant tenement and conveys with that deed forever. In addition to an access easement, other possible easements appurtenant in the country are ones that allow for a non-owner to cross a bridge, use surface water or other resources, or tap into a spring.

An easement appurtenant is not a lease. An easement gives its owner the right to use the land of another, but not to occupy it or possess it as a lease does. A lease has a termination date while easements tend not to have termination dates.

An easement also differs from a license. When I give permission to A to use my property (B), it’s a license. I can end it any time. It does not run with the lands of either A or B. It is not perpetual. When either property is sold, the license ends. When either of the two parties who entered into the license dies, it ends. If someone is using your land under vague or disputed terms, you might start down the road to clarification by sending that party a letter granting them a license. It is then up to the other party to establish that they have an easement, not a license.

A personal covenant, which gives another party some right or denies some right in the land of another, is more of a contract than an easement when it doesn’t run with the land of either party. If I agree to let you pick apples from my trees, it’s a covenant, license or contract, not an easement or a lease.

An easement is not a reservation of profit in another’s land or its resources.

A profit is a right to take something off the land, like oil.

An easement in gross provides for an individual right to use another’s land. The right is held by a person or business entity, and does not attach to another parcel of land like an easement appurtenant. Utility and pipeline easements are easements in gross. They allow their holders to come onto the servient tenement to install and maintain their lines.

A landowner can agree to become a servient tenement by granting, donating or selling an easement to a dominant tenement. The easement granted, donated or sold allows the dominant tenement to use the servient tenement in some way, as in the case of an access easement.

With a negative or restrictive easement, the dominant tenement receives some property right in the servient tenement which the servient tenement can no longer use.

In a conservation easement, for example, the servient tenement may relinquish the right to develop residences on farmland to a land trust, which has the authority to prohibit the servient tenement from ever engaging in such development.

A grant is like a deed in that it will be described and conveyed. Most easements that are granted are written and recorded, but not all. Grants are agreed to by both the dominant and servient tenements.

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About the author

Curtis Seltzer

Curtis Seltzer is a land consultant, columnist and author of How To Be a DIRT-SMART Buyer of Country Property, available at Curtis-Seltzer.com where his columns are posted. He also does commentary for Virginia public radio. His new book, Land Matters: The “Country Real Estate” Columns, 2007-2009, which includes 14 commentaries on CD.

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